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USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
_________________________
No. 95-1331
ROSEMARY PYE, REGIONAL DIRECTOR, ETC.,
Petitioner, Appellee,
v.
TEAMSTERS LOCAL UNION NO. 122,
Respondent, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge] ___________________
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_________________________
Before
Selya and Cyr, Circuit Judges,
______________
and Schwarzer,* Senior District Judge. _____________________
_________________________
Stephen R. Domesick for appellant ___________________
Corinna L. Metcalf, Deputy Assistant General Counsel,___________________
whom Frederick Feinstein, General Counsel, Ellen A. Farr
___________________ _____________
Assistant General Counsel, and Barry J. Kearney, Acting Assis ________________
General Counsel, were on brief, for appellee.
_________________________
August 8, 1995
_________________________
_______________
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*Of the Northern District of California, sitting by designati
SELYA, Circuit Judge. This appeal featuresSELYA, Circuit Judge.
______________
interlocutory injunction issued on the authority of section 1
of the National Labor Relations Act (NLRA), barring a l
union's innovative practice of conducting "group shop-ins
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secondary businesses (retail liquor outlets) as an outgrowt
its grievance with a primary employer (a beer distributo
After carefully considering the parties' positions in lig
the pertinent authorities, we affirm the district court's o
in all respects.
I. THE FACTS AND THE PROCEEDINGS BELOW I. THE FACTS AND THE PROCEEDINGS BELOW
The facts are set out in the district court's opin
see Pye v. Teamsters Local Union No. 122, 875 F. Supp. 921,___ ___ ______________________________
24 (D. Mass. 1995), and it would serve no useful purpos
rehearse them here. We content ourselves with a decur
summary, presented in a manner that recognizes the statutory
____________________
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1Section 10(l) provides in relevant part:
Whenever it is charged that any person has
engaged in an unfair labor practice [as
defined in other sections of the NLRA], the
preliminary investigation of such charge
shall be made forthwith . . . . If, after
such investigation, the officer or regional
attorney to whom the matter may be referred
has reasonable cause to believe such charge
is true and that a complaint should issue, he
shall, on behalf of the Board, petition any
[appropriate] United States district court .
. . for appropriate injunctive relief pending
the final adjudication of the Board with
respect to such matter.
29 U.S.C. 160(l) (1988). The same statute authorizes
district court to grant such injunctive relief "as it deems
and proper . . . ." Id.
___
2
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enjoyed by petitioner-appellee, the Regional Director of
National Labor Relations Board (NLRB or Board), in connec
with the resolution of disputed factual issues and the infere
that may be drawn therefrom.
In November of 1994, respondent-appellant Teams
Local Union No. 122 (the Union), then embroiled in a l
dispute with August A. Busch & Co. of Massachusetts,
(Busch), organized three group shopping trips. During
outing, Union members descended, in droves and in concert, up
designated retail establishment and engaged in multiple roun
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penny-ante purchasing, buying small, inexpensive items suc
packs of chewing gum or bags of potato chips and paying for
(more often than not) with bills of large denomination.
sequelae were predictable: overcrowded parking lots, conge
aisles, long checkout lines, and an exodus of regular custo
Although some of the group shoppers adorned themselves with
symbols, the record contains virtually no proof of objecti
expressive activity. More particularly, we can find no evi
suggesting that the Union, through group shopping, made
discernible attempt to communicate a defined message to
public.2
The three shop-ins, each involving a different reta
engaged in commerce, occurred at different locations
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____________________
2During one of the excursions some Union adherents rema
outside the store, holding banners aloft. The injunction is
by the lower court does not affect that activity, and we cons
it irrelevant for the purpose of determining the issues
judice. ______
3
Massachusetts. The first incident transpired on November
when a band of approximately 70 Union members invaded
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premises of Kappy's Liquors. The group shopping (
respondent prefers to call "affinity group shopping"
"associational shopping") persisted for some 45 minutes.
record reflects that at least one customer, appare
discouraged by the crush of Union members, left wit
transacting any business. The second shop-in occurre
November 23 at Wollaston Wine. This event also lasted abou
minutes. Approximately 125 Union members participated.
third incident took place on November 25 at the liquor depart
of Price Costco, a discount house. It involved 50 or so
members. The record does not pinpoint its duration. All t
episodes began late in the afternoon (a prime time in the pac
store trade), and the latter two incidents occurred on the
before and after the Thanksgiving holiday (days that customa
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produce substantial sales for liquor retailers). The re
reveals that on at least two of the occasions store mana
complained to a Union official who was on the premises, deplo
the disruptive effects of the practice on their business. On
third occasion, the store owner apparently took his conc
directly to Busch.
Busch displayed little affinity for the Union's n
contrived stratagem. It complained to the Regional Director
in turn, initiated an administrative adjudicatory proces
examine whether the group shopping constituted an unfair l
4
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practice prohibited by NLRA 8(b)(4)(ii)(B), 29 U.S.C
158(b)(4)(ii)(B) (1988). The Regional Director theorized t
because the Union's actual labor dispute was with the pri
employer, Busch, section 8(b)(4)(ii)(B) expressly prohibite
from trying to impair the relationships of secondary busine
(the retail stores) with Busch. Resisting this line of reaso
and denying any wrongdoing, the Union asseverated that t
shop-ins were efforts to publicize its grievance with Busch,
were thus beyond the statute's proscriptive reach. The
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also asseverated that, in the end, the group shopping actu
benefitted the retailers by generating hundreds of dollars
sales.
The Regional Director refused to buy the Union's wa
On December 1, she invoked section 10(l) and petitioned
temporary injunctive relief in the federal district co
asserting that she had reasonable cause to believe that
associational shopping amounted to an illegal secondary boy
because its real purpose was to force the retailers to c
purchasing beverages from Busch. The district court, percei
no need for an evidentiary hearing,3 found for the Regi
____________________
3Section 10(l) directs that affected parties "shall be
an opportunity to appear by counsel and present any rele
testimony." Here, however, the district court found that
papers were sufficient. See Pye, 875 F. Supp. at 928 ("B
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___ ___
simply on the affidavits of the Union representative and
admissions made by the Union . . ., all of the relevant facts
admitted."). Although the Union's briefs appear critical of
ruling, the Union has not appealed from it, and we decline
address it further. See Ryan v. Royal Ins. Co. of Am., 916___ ____ _____________________
731, 734 (1st Cir. 1990) ("It is settled in this circuit
issues adverted to on appeal in a perfunctory man
5
Director. See Pye, 875 F. Supp. at 925-28. In due course,___ ___
court entered a decree that constitutes the actual injunct
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Its key provisions are set out in the margin.4 This ap
ensued.
II. THE LAW AND ITS APPLICATION II. THE LAW AND ITS APPLICATION
The so-called labor injunction has been among the
controversial landmarks dotting the historical landscape
American labor law. See generally Felix Frankfurter & Na ___ _________
Greene, The Labor Injunction (1930); Clarence E. Bonnet,_____________________
Origin of the Labor Injunction, 5 S. Cal. L. Rev. 105 (19 _______________________________
Eileen Silverstein, Collective Action, Property Rights, and
________________________________________
____________________
unaccompanied by some developed argumentation, are deemed to
been abandoned.").
4The decree prohibits the Union, and various categorie
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individuals associated with it, from:
(a) organizing and conducting mass
demonstrations, including affinity group
shopping, store occupations, occupying
parking lots, picketing or other mass
activity, where an object thereof is to force
or require Kappy's Liquors, Wollaston Wine,
Price Costco or any other person to cease
using, selling, handling, transporting or
otherwise dealing in the products of or to
cease doing business with August A. Busch &
Co. of Massachusetts, Inc.
(b) in any manner or by any means,
threatening, coercing or restraining Kappy's
Liquors, Wollaston Wine, Price Costco or any
other person engaged in commerce or in an
industry affecting commerce where an object
thereof is to force or require Kappy,s
Liquors, Wollaston Wine, Price Costco or any
other person to cease using, selling,
handling, transporting or otherwise dealing
in the products of or to cease doing business
with August A. Busch & Co. of Massachusetts,
Inc.
6
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Reform: The Story of the Labor Injunction, 11 Hofstra Lab.___________________________________________
97 (1993). The section 10(l) injunction is a special specie
the labor injunction,5 designed to halt, inter alia, secon _____ ____
activity that the Regional Director believes is in violation
NLRA 8(b)(4)(ii)(B) until the NLRB can consider the charges
reach a decision on the merits. The special nature of
section 10(l) injunction informs our analysis of the case.
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A. Standards of Review. A. Standards of Review. ___________________
The standards of review applicable to appeals
district court decisions arising under section 10(l), whe
granting or denying the requested relief, are extre
deferential. We review the lower court's factual findings
clear error; we review its rulings of law de novo; and we re
its ultimate conclusion, authorizing or withholding
requested relief, for abuse of discretion. See Hoeber v. L ___ ______
30, United Slate, Tile & Composition Roofers, Etc., 939 F.2d
__________________________________________________
123 (3d Cir. 1991); Union de Tronquistas de P.R., Local 901_______________________________________
Arlook, 586 F.2d 872, 876 (1st Cir. 1978); see also Asseo______ ___ ____ ____
Centro Medico del Turabo, Inc., 900 F.2d 445, 450 (1st Cir. 1 ______________________________
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Labor Injunction Litigation Under Sections 10(j) and 10(l) of
____________________________________________________________
National Labor Relations Act, 59 Ind. L.J. 565, 575-76 (1 _____________________________
(noting these standards of review and the striking pattern
appellate deference under section 10(l)).
Our level of deference is heightened because we
perched on the second tier of review vis-a-vis the Regi _________
Director's assertion of reasonable cause. The district c
occupies the first tier, and just as that court must itself
in significant measure to the evaluative judgments of
Regional Director, see, e.g., Union de Tronquistas, 586 F.2___ ____ ____________________
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876, so, too, must we defer to the district court.6 Thus
this doubly sheltered enclave, the judicial task is gener
confined to weeding out wholly arbitrary or thorou
insupportable petitions for relief. See Squillacote v. Gra ___ ___________ __
Arts Int'l Union, 540 F.2d 853, 859 (7th Cir. 1976). ________________
Of course, an important reason undergirding
____________________
6This layered deference district court to Regi
Director and appellate court to district court has paral
elsewhere in the law. For example, we have encountere
virtually identical design when reviewing district c
assessments of consent decrees under certain environme
statutes. See, e.g., United States v. DiBiase, 45 F.3d 541,___ ____ _____________ _______
44 (1st Cir. 1995); United States v. Cannons Eng'g Corp.,_____________ ____________________
F.2d 79, 84 (1st Cir. 1990). In such circumstances, we have
impelled to note that "by the time [such] consent decrees r
this court, they are encased in a double layer of swaddli
DiBiase, 45 F.3d at 544 (internal quotation marks omitt _______
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reflecting not only the district court's justifiable mandat
defer to administrative expertise, but also the appellate cou
mandate to defer to the trial court's factfinding expertise
its informed discretion. In turn, this "doubly requ
deference district court to agency and appellate court
district court places a heavy burden on those who purpos
upset a trial judge's approval of a consent decree." Cann ___
899 F.2d at 84. The burden is equally heavy here.
8
deferential standard of judicial review in section 10(l) case
that neither the district court nor the court of appeals
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adjudicating the merits, as such, to determine whether an un
labor practice occurred. To the contrary, the courts' rol
this stage is merely to supply a stopgap, that is, to pallia
likely violation detected by the Regional Director "pendin
final adjudication of the Board with respect to such matter."
U.S.C. 160(l). Consequently, a decision in a section 1
proceeding is circumscribed in both time and scope, an
relief that may be granted is effective only while the rel
unfair labor practice charge is pending before the NLRB.7
Sears, Roebuck & Co. v. Carpet, Linoleum, Soft Tile & Resil _____________________ ___________________________________
Floor Covering Layers, 397 U.S. 655, 658-59 (1970) (per curi
_____________________
Walsh v. International Longshoremen's Ass'n, 630 F.2d 864,_____ ___________________________________
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(1st Cir. 1980). Given the design of the statute, the a
expertise involved, and the two-tiered structure of revie
party appealing from an order granting or refusing a tempo
injunction pursuant to section 10(l) confronts the sobe
prospect that most battles over the appropriateness of
____________________
7Still another reason to accord a significant degree
deference to the claims of the Regional Director is the stre
of the congressional mandate. See Union de Tronquistas, 586___ ____________________
at 876. Under the law, once the Regional Director has reason
cause to believe that a Union's activity falls within
proscription of section 10(l), she "shall . . . petition ._____
for appropriate injunctive relief . . . ." 29 U.S.C. 16
(emphasis supplied). This is in stark contrast to section 10
which grants discretion to pursue injunctions against emplo
under specified circumstances. See Miller v. California___ ______ ___________
Medical Ctr., 19 F.3d 449, 456 (9th Cir. 1994) (en b _____________
(recognizing the dichotomy); see generally Schatzki, supra___ _________ ____
568-71 (comparing and contrasting the provisions).
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9
redress will be won or lost long before appellate review t
hold.
B. Standard of Analysis. B. Standard of Analysis. ____________________
Congruent with these deferential standards of re
the analytic path to be traversed in a section 10(l) case
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narrower than that typically travelled in the course of revie
the grant or denial of preliminary injunctive relief. In
"in a section 10(l) case the judicial inquiry is only, o
least primarily, whether there is reasonable cause to belie
section 10(l) offense has been committed." Maram v. Univers _____ ______
Interamericana de P.R., Inc., 722 F.2d 953, 958 (1st Cir. 19 ____________________________
Other factors that ordinarily inform district court action
respect to temporary injunctions are, at most, of secon
interest. See id. (concluding that "the special importance___ ___
Congress attaches to section 10(l) offenses indicates . .
strong presumption of irreparable harm, with the balance in f
of the charging party, and that the public interest favors
injunction"). Hence, the method of analysis that go
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appellate review of the propriety and scope of a section 1
injunction is best described as follows:
First, the court must determine whether the
Regional Director has reasonable cause to
believe that the elements of an unfair labor
practice are present. In this regard, the
Director need only show the existence of
credible evidence, even if disputed, together
with reasonable inferences, which support
[her] conclusions. . . . Second, the court
must conclude that the legal theories relied
upon by the Director are not without
10
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substance. Finally, it must find that
temporary injunctive relief is "just and
proper" in terms of effectuating the purposes
of the Act.
Union de Tronquistas, 586 F.2d at 876 (citations omitted).
____________________
Having stated the bareboned test, we next flesh out
three constituent parts.
1. Reasonable Cause. The centerpiece of the requ 1. Reasonable Cause.
________________
analysis is the supportability vel non of the Regional Direct ___ ___
determination that there is reasonable cause to believe that
unfair labor practice has been, or is being, committed. The
law reveals two principles, in particular, that demarcate
meaning and the margins of this requirement.
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First, the Regional Director's evidentiary bur
whether measured quantitatively or qualitatively, is mo
Although courts phrase this principle in different
sometimes speaking in terms of the Regional Director's burde
proof, see, e.g., Hirsch v. Building & Constr. Trades Coun ___ ____ ______ _______________________________
530 F.2d 298, 302 (3d Cir. 1976) (characterizing burde
"relatively insubstantial"), sometimes speaking in terms of
quantum of proof, see, e.g., Gottfried v. Sheet Metal Wor ___ ____ _________ ________________
Int'l Ass'n, Etc., 927 F.2d 926, 927 (6th Cir. 1991) (requi
_________________
only that the Regional Director bring forth "some evidence
support of her petition), and sometimes speaking in terms of
probative value of evidence as opposed to its raw quantity,
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e.g., Union de Tronquistas, 586 F.2d at 876 (requiring that____ _____________________
Regional Director "show the existence of credible evidence, .
together with reasonable inferences," to support
11
conclusions), the thrust of the decided cases is uniform:
Regional Director need not prove that the respondent has in
violated the NLRA, but, rather, she need only make a min
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evidentiary showing of good reason to believe that the essen
elements of an unfair labor practice are in view.
The second principle that is germane to the reason
cause inquiry is that genuinely disputed issues of material
should be resolved at this early stage in favor of the Regi
Director's exposition. See Maram, 722 F.2d at 958; Unio___ _____ ___
Tronquistas, 586 F.2d at 876; Kaynard v. Mego Corp., 633___________ _______ __________
1026, 1031 (2d Cir. 1980). Put another way, in proceedings u
section 10(l) the Regional Director must be given the benefi
every legitimate fact-based doubt. Thus, a reviewing court "
not concern itself with resolving conflicting evidence if f
exist which could support the [Regional Director's] theory
liability." Fleischut v. Nixon Detroit Diesel, Inc., 859_________ ___________________________
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26, 29 (6th Cir. 1988).
2. Legal Theory. The next segment of the tripar 2. Legal Theory. _____________
analysis implicates the legal theory on which the Regi
Director relies. The requirement is straightforward:
Regional Director's theory need not be irreproachable;
suffices if it "is not without merit." Union de Tronquistas,____________________
F.2d at 877. In other words, the Regional Director need
persuade the court then and there of her theory's ulti
validity, but she must show that the theory is presentable.
Hirsch, 530 F.2d at 302 (explaining that the legal theory______
12
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which the Regional Director proceeds must be "substantial an
frivolous"); see also Hoeber, 939 F.2d at 123-24 (quoting Hi ___ ____ ______ _
with approval); see generally 8 Theodore Kheel, Labor L
___ _________ _______
38.01[1], at 38-9 (1995).
3. Just and Proper. Finally, injunctive re
3. Just and Proper. _________________
granted pursuant to section 10(l) must, by the terms of
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statute itself, be "just and proper." Both the purpose and
contours of this imperative are relatively well-developed.
purpose of the 10(l) injunction is to preserve the status
in order that the ultimate decision of the Board would no
negated or rendered moot by intervening events." Compto_____
National Maritime Union of Am., 533 F.2d 1270, 1276 (1st________________________________
1976). Thus, temporary injunctive relief, if other
warranted, passes the "just and proper" test as long as
comprises a reasonable means of ensuring the efficacy of
Board's final order, or preserving the status quo, or permit
administrative proceedings to go forward without undue hindra
or preventing unjustified interruption of the free flo
commerce, or forestalling the repetition of unfair l
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practices. See, e.g., Hoeber, 939 F.2d at 122; Gottfried,___ ____ ______ _________
F.2d at 927; Asseo, 900 F.2d at 455; Union de Tronquistas,_____ _____________________
F.2d at 878. In this sense, the purpose of the section 1
injunction is simply a narrower, more specific expression of
purpose underlying preliminary injunctions in general.
e.g., CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48____ ____________________ ________________________
13
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618, 620 (1st Cir. 1995) ("The purpose of a prelimi
injunction is to preserve the status quo, freezing an exis
situation so as to permit the [ultimate trier of the issu
upon full adjudication of the case's merits, more effectivel
remedy discerned wrongs.").
Since a section 10(l) injunction "may enjoin only t
unlawful labor practices specified in the [NLRA]," Hendrix______
International Union of Operating Eng'rs, Local 571, 592 F.2d__________________________________________________
445 (8th Cir. 1979), the form of the injunction must dove
with the statutory goals. However, less is often better
more, and the relief granted should be narrowly tailored to
which is reasonably necessary to stop mischief, pre
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additional harm, and ensure effective final relief.
Gottfried, 927 F.2d at 928; Potter v. Houston Gulf Coast B _________ ______ ____________________
Trades Council, 482 F.2d 837, 841 (5th Cir. 1973). ______________
C. Applying the Standards. C. Applying the Standards. ______________________
Applying these standards of review and analysis,
conclude that the instant decree passes muster.
1. Reasonable Cause. The statutory proscription1. Reasonable Cause.
________________
triggered section 10(l) in this case, namely, sec
8(b)(4)(ii)(B), makes it "an unfair labor practice for a l
organization or its agents . . . to threaten, coerce, or rest
any person engaged in commerce or in an industry affec
commerce, where . . . an object thereof is . . . forcin
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requiring any person . . . to cease doing business with any o
person . . . ." The question at this step of the analy
14
therefore, reduces to the supportability of the district cou
finding that the Regional Director had reasonable cause
believe (1) that the activity of group shopping might so
threaten, coerce, or restrain a retail liquor outlet, an
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that an object of the group shopping was to force or require
secondary businesses to sever relations with Busch. We conc
that this finding is not clearly erroneous.
First and foremost, it is reasonable to regard
practice of group shopping as potentially coercive.
character of the conduct including the use of all or virtu
all of a store's parking lot, the occupation of much of
interior shopping area, the forbidding presence of a thron
people acting in unison, and the fostering of long checkout l
through repeated purchases of small items with large bill
tends by its very nature to disrupt normal commercial acti
and, thus, to place economic pressure on a retail establis
to appease the Union by, say, cutting back on dealings wit
primary employer.8 The Union counters that, even so,
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____________________
8The Union's insistence that the shop-ins actually gener
sales for the retailers is a red herring empirically errone
conceptually incomplete, and legally irrelevant. For one t
sales limited to snacks and individual drinks during a p
selling period scarcely seem economically beneficial
compared to the retailer's opportunity costs, that is,
displaced sale of liquor, wine, and other more profitable it
See Pye, 875 F. Supp. at 926 ("In the regular course of eve ___ ___
one would expect eighty customers to spend more than four dol
each."). Similarly, the Union's rodomontade utterly disre
the potential long-term economic consequences of the shop-
such as the easily envisionable loss of intimidated or frustr
customers. For another thing, it is the secondary business,
the Union, that should determine what is or is not in
former's best economic interest. Here, the record stro
15
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evidence falls short. Insofar as this argument presumes
moderately obstructive conduct by a union is not alone suffic
either to trigger section 8(b)(4)(ii)(B) or to justify a sec
10(l) injunction, we accept the presumption. See Nati ___ ___
Maritime Union of Am. v. NLRB, 367 F.2d 171, 176 (8th Cir. 19 _____________________ ____
cert. denied, 386 U.S. 959 (1967). Because section 8(b _____ ______
ultimately proscribes objects rather than merely the
adopted to accomplish them, the record must contain en
evidence to permit a finding that the Union actually posse
the statutorily proscribed object of forcing secon
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establishments to cease doing business with the primary emplo
We think that the Regional Director satisfied
requirement here. To be sure, there is no smoking gun, no di _
evidence of an avowed intention to influence the retail
commercial behavior. But a "union's `object' may be infe
from its acts," New York Mailers' Union No. 6 v. NLRB, 316______________________________ ____
371, 372 (D.C. Cir. 1963), and particularized evidence
subjective intent is not essential for proof of a violation.
NLRB v. Erie Resistor Corp., 373 U.S. 221, 227 (1963); NRL
____ ____________________ __
Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 68 ________________________________________
(1951); Soft Drink Workers Union Local 812 v. NLRB, 657____________________________________ ____
1252, 1261-62 (D.C. Cir. 1980); Pickens-Bond Constr. Co________________________
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United Bhd. of Carpenters & Joiners of Am., Local 690, 586______________________________________________________
____________________
suggests that the retailers themselves did not welcome
Union's custom. Finally, whether or not economic harm actu
occurs as a result of a union's secondary activity is, in
circumstances of this case, largely beside the point.
16
1234, 1241 (8th Cir. 1978); see also International Longshore
___ ____ _______________________
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Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 224 (1982) (confir _____ __________________
that a union "must take responsibility for the `foresee
consequences' of its conduct") (quoting NLRB v. Retail S
____ ________
Employees Union, Local 1001, 447 U.S. 607, 614 n.9 (1980)).___________________________
follows that, if an unwholesome object can logically be infe
from the nature of the conduct, evaluated in light of
practical realities of a given situation, then direct evidenc
the object need not be produced. See, e.g., Local 357, I ___ ____ ____________
Bhd. of Teamsters, Etc. v. NLRB, 365 U.S. 667, 675 (1961).
_______________________ ____
Here, the facts permitted the Regional Dire
rationally to infer an unlawful object on the Union's part.
Union's conduct was undertaken in such a way, and at such ti
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as to maximize its obstructiveness. And, moreover, this ef
can easily be viewed as primary and deliberate, not incide
and accidental. Hence, the Regional Director could reason
have believed that the principal object of the shop-ins wa
force the secondary businesses to stop trading with the pri
employer. As the district court perspicaciously observed,
group shop-ins can reasonably be interpreted as having
designed to send a dual message to the retailers: first, "
the Union has the ability to interfere with the working of t
business at any time," and second, that the retailers ought
to get involved with Busch" in the ongoing labor dispute
picking up merchandise directly from Busch's warehouse. Pye,___
F. Supp. at 926.
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17
The Union has a fallback position. Citing both E _
J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Tr __________________ _____________________________________
Council, 485 U.S. 568 (1988), and the First Amendment, the_______
hawks its right, specifically preserved by section 8(b)(4)
publicize its grievance with a primary employer.9 Buildin
this theme, the Union claims that the injunction is tantamoun
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an impermissible content-based regulation because it pre
activities that could affect the public's marketplace decis
about what beer to purchase. While the Union's theory
raise potentially interesting issues if anchored in the rec
see generally Lee Goldman, The First Amendment and Nonpicke ___ _________ ________________________________
Labor Publicity Under Section 8(b)(4)(ii)(B) of the Nati
____________________________________________________________
____________________
9Section 8(b)(4) is hedged by two provisos. One decl
"[t]hat nothing contained in . . . clause (B) shall be const
to make unlawful, where not otherwise unlawful, any pri
strike or primary picketing . . . ." The second proviso,
which the Union relies here, is the so-called "publi
proviso." It stipulates:
That for the purposes of this paragraph (4)
only, nothing contained in such paragraph
shall be construed to prohibit publicity,
other than picketing, for the purpose of
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truthfully advising the public, including
consumers and members of a labor
organization, that a product or products are
produced by an employer with whom the labor
organization has a primary dispute and are
distributed by another employer, as long as
such publicity does not have an effect of
inducing any individual employed by any
person other than the primary employer in the
course of his employment to refuse to pick
up, deliver, or transport any goods, or not
to perform any services, at the establishment
of the employer engaged in such distribution
. . . .
29 U.S.C. 158(b)(4) (1988).
18
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Labor Relations Act, 36 Vand. L. Rev. 1469 (1983), it floats___________________
of factual support and, therefore, need not concern us.
In the first place, we like the district court,
Pye, 875 F. Supp. at 927 remain unconvinced that the Uni ___
affinity group shopping, under the circumstances recounted in
record, can be deemed objectively expressive. At any rate, t
is little or no evidence to suggest that the Union's object
mounting group shop-ins was related to publicity in
meaningful sense, or that the participating Union members
actually engaged in expressive activity. In turn, because
group shopping was not a publicity-based appeal to consumers,
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principal cases cited by the Union which address
constitutional and statutory status of such activity, DeBar ____
included, are simply not relevant to the disposition of
case.
In the second place, section 8(b)(4)(ii)(B) is in
as long as forcing one person to stop doing business with ano
is an object of the allegedly unlawful activity; the sta __
requires neither that the proscribed object be the exclu
object nor even the primary object. See Denver Bldg. & Con ___ __________________
Trades, 341 U.S. at 689; Local Union No. 25 v. NLRB, 831______ ___________________ ____
1149, 1153 (1st Cir. 1987); Carpet, Linoleum, Soft Til___________________________
Resilient Floor Covering Layers v. NLRB, 467 F.2d 392, 399________________________________ ____
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(D.C. Cir. 1972). Thus, whatever mixed motives the
harbored are of considerably less import once an unlawful ob
19
is discerned.10 This is especially true in the preci
patrolled by section 10(l). Even if "[t]he claims of the
based on the first amendment to the Constitution and on
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believe that the Union's practice of group shopping was
potential violation of section 8(b)(4)(ii)(B).
2. Legal Theory. We turn next to the questio
2. Legal Theory. ____________
whether the instant case fits within the legal contours
____________________
10It is of some significance that we are here not addres
generally nonobstructive activity at the perimeter of
employer's business situs, as in DeBartolo, but, rat _________
inherently obstructive activity (even if marginally express
conducted inside the establishments of secondary business
activity which could unduly "bring [these] neutral, secon
employers into a labor dispute in order to apply pressure on
primary employers," Brian K. Beard, Comment, Secondary Boyc ______________
After DeBartolo: Has the Supreme Court Handed Unions a Powe _______________ __________________________________________
New Weapon?, 75 Iowa L. Rev. 217, 233 (1989), and the ____________
undermine the prescriptive purpose of section 8(b)(4)(ii)(B).
20
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section 8(b)(4)(ii)(B). Having mulled the Regional Direct
theory that the Union's group shopping amounted to
unlawfully coercive secondary boycott we conclude that it
sufficiently colorable.
The legal significance of the practice of
shopping is a matter of first impression. But, the novelty
Regional Director's legal theory should rarely, in and of its
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foreclose the availability of injunctive relief under sec
10(l). Novelty
does not necessarily signify insubstantiality. See, e ___
Hendrix, 592 F.2d at 442-43; Squillacote, 540 F.2d at 858; B _______ ___________
v. International Bhd. of Teamsters, Etc., 479 F.2d 778, 790______________________________________
Cir. 1973); cf. EEOC v. Steamship Clerks Union, Local 1066___ ____ __________________________________
F.3d 594, 607 n.13 (1st Cir. 1995) ("It would be a peculiar
of construction if a statute could not be applied in a cer
manner unless it had already been applied in that manner i
previous case."), petition for cert. filed, 63 U.S.L.W.________ ___ _____ _____
(U.S. May 26, 1995) (No. 94-1953). Thus, we hold that a n
legal theory may, if plausible, provide an appropriate founda
for a section 10(l) injunction.
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We have little difficulty in finding that the Uni
group shopping plausibly could be deemed a coercion-b
secondary boycott under section 8(b)(4)(ii)(B) and, hence,
there is adequate legal substance behind the issuance of
injunction. The language of section 8(b)(4)(ii) "is pragmati
its application, looking to the coercive nature of the con
21
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not to the label which it bears." Local Union No. 25, 831__________________
at 1153 (citation and internal quotation marks omitt
Although group shopping, as conducted by the Union in this c
is a new twist and may not fit the traditional conception
secondary boycott, see, e.g., Denver Bldg. & Constr. Trades,___ ____ _____________________________
U.S. at 687 (describing a classic secondary boycott),
qualification mostly serves to earn the Union high marks
ingenuity. Coercion under section 8(b)(4)(ii)(B) is a b
concept, and the NLRB has not hesitated to include varied f
of economic pressure within the conceptual ambit. See, e ___
International Union, United Mine Workers of Am., 304 N.L.R.B._______________________________________________
72-73 (1991) (finding unlawful coercion where union me
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caused a disturbance at a motel housing striker replaceme
reasoning that the motel was a neutral employer and the u
activity could pressure it to terminate its relationship wit
labor supply contractor in order to force the latter to c
doing business with the primary employer), enforced, 977
________
1470 (D.C. Cir. 1992); Local No. 742, United Bhd. of Carpente_____________________________________
Joiners of Am., 237 N.L.R.B. 564, 565-66 (1978) (finding t______________
union's quid pro quo request for premium pay from a neu
employer was unlawfully coercive because it was actuall
effort to cause the modification of that employer's relation
with another employer); Service & Maintenance Employees Un
___________________________________
Local 399, 136 N.L.R.B. 431, 436-37 (1962) (holding tha__________
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union's generally nonexpressive marching around the main entr
of a sports arena, impeding public access, constituted unla
22
coercion). Here, though one can imagine more significant f
of economic pressure than associational shopping, we nonethe
believe that the Regional Director's legal theory is sufficie
substantial that the district court's approbatory conclusion
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be left intact.11
3. Just and Proper. We come finally to the ques
3. Just and Proper. ________________
of whether the injunctive relief structured below can be de
just and proper in light of the relevant factual and l
circumstances. We conclude that it can.
The district court held that injunctive relief is
and proper in this case because of its relationship to
statutory goals: (1) to prevent disruptions in the flo
commerce, and (2) to protect innocent third parties from beco
embroiled in a labor dispute. See Pye, 875 F. Supp. at
___ ___
This threshold determination rests on empirical and l
bedrock. It is indisputable that the statutory proscriptio
secondary boycotts contemplates both the maintenance of
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unhindered stream of commerce, see, e.g., Hoeber, 939 F.2___ ____ ______
122; Union de Tronquistas, 586 F.2d at 878, and the shieldin____________________
secondary businesses from unlawful intrusions, see, e
___
International Longshoremen's Ass'n, 456 U.S. at 223 n.20; De ___________________________________ _
____________________
11Of course, this ruling means only what it says, and
not speak to whether the Union's contrary view may prevail in
long run. That question is not before us at this time.
e.g., Madden v. International Hod Carriers', Bldg. & Co
____ ______ _________________________________________
Laborers' Union of Am., Local No. 41, 277 F.2d 688, 690_______________________________________
Cir.) (explaining that "[t]he ultimate determination on
merits as to whether a violation occurred is reserved exclusi
for the Board, subject to judicial review" at the appropr
time), cert. denied, 364 U.S. 863 (1960). _____ ______
23
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Bldg. & Constr. Trades, 341 U.S. at 692. After all, "[a] u _______________________
has a right to press a recalcitrant employer within the limit
the law; but, [a secondary business] has an equal and correla
right to be protected from becoming a union pawn in an end
directed at some other employer." Local Union No. 25, 831__________________
at 1152. On this basis, then, temporary injunctive relie
some sort is clearly just and proper.
Starting from this major premise, our focus necessa
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becomes the scope of the decree that the lower court actu
entered. The Union tells us that the decree is vague
overbroad. We reject this characterization. The injuncti
prohibitory ambit is quite clear and its contours are ra
specific. Short of cataloguing each and every poten
violation, we do not see what further particularization
district court could reasonably have inserted. The require
that temporary injunctions be clear and specific, Fed. R. Ci
65(d), does not mean that they must read like the working p
for building hydrogen bombs. See Pacific Maritime Ass'
___ ______________________
International Longshoremen's & Warehousemen's Union, 517______________________________________________________
1158, 1162-63 (9th Cir. 1975).
We likewise fail to discern any merit in the Uni
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allegation of overbreadth. The injunction carefully proscr
certain types of activity, aimed at secondary busines
undertaken by the Union and other denominated individuals, wi
specific (unlawful) intent. No more is exigible.
The Union's last-ditch argument is that the injunc
24
should be expressly limited in duration, particularly sinc
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will remain operative until the Board acts, and that agency
not reach a decision on the merits for some time. In suppor
this argument, the Union cites Eisenberg v. Hartz Mountain Co _________ ________________
519 F.2d 138 (3d Cir. 1975), in which the court held that sec
10(j) injunctions, absent extraordinary circumstances, shoul
confined to six months in duration. See id. at 144. The Uni ___ ___
reliance on Eisenberg is unavailing. For one thing, that_________
involves section 10(j), not section 10(l), and the differe
between the two provisions are not insignificant. See supra
___ _____
7 (contrasting the two provisions); see also Maram, 722 F.2___ ____ _____
957-58 (explaining why the range of considerations affectin
propriety of injunctive relief varies between sections 10(j)
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10(l)). For another thing, several other circuits have expre
declined to adopt the Third Circuit's inelastic six-month r
instead leaving the matter of duration to be decide
individual district courts on a case-by-case basis. See, e ___
Sheeran v. American Commercial Lines, Inc., 683 F.2d 970, 98 _______ _______________________________
(6th Cir. 1982); Kaynard, 633 F.2d at 1035; Dawidoff_______ _______
Minneapolis Bldg. & Constr. Trades Council, 550 F.2d 407,____________________________________________
(8th Cir. 1977); Squillacote, 540 F.2d at 860. Hendrix typi ___________ _______
the reasoning of those courts. There, the Eighth Circuit sta
"We find the congressional history indicates that Congress
aware of the lengthy Board hearing procedures when Section 1
was enacted. Since Congress did not impose a time limit
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Section 10(l) injunction, we find no reason why this Court s
25
impose such a limit." Hendrix, 592 F.2d at 446. _______
A measure of adjudicatory delay is one of the cro
that contemporary litigants must bear. See, e.g., Maram,___ ____ _____
F.2d at 960 ("A busy administrative agency cannot ope
overnight. The very fact that it must exercise discretion,
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that its decision is entitled to presumptive weight, indi
that it should have time to investigate and deliberat
(footnote and citation omitted). Thus, we abjure the T
Circuit's rule and hold, instead, that the question of whethe
injunction issued under section 10(l) should be tempor
limited and, if so, to what extent is a matter within
sound discretion of the district court.
We add an eschatocol of sorts. By declinin
Union's invitation to sponsor a per se durational rule, we i
way intend to condone needless delay in the administra
adjudicatory process. We anticipate that the Board will pro
with dispatch to decide the merits of all section 10(l) ca
If this prediction proves to be overly optimistic in a partic
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instance, the Union may, if it can make a credible showing
the Board's delay is genuinely undue, ask the district cour
modify or dissolve the temporary injunction. See, e.g., As ___ ____ _
805 F.2d at 29 (suggesting that the Regional Director's re
for a temporary injunction should be taken as "a promise
speedy [administrative] disposition, with the risk
dissolution, or modification, by the court, on motion . . .
the promise is not kept"); Solien, 593 F.2d at 88 (sugges ______
26
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that if agency action is unreasonably delayed in a section 1
case, a union may seek a modification or dissolution of
challenged injunction in the district court).
III. CONCLUSION III. CONCLUSION
We need go no further. The temporary injunction,
granted, is grounded in the Regional Director's support
finding of reasonable cause, rests on a credible legal the
and is suitable in both its proscriptive reach and its temp
scope. Accordingly, we uphold it in all respects.
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Affirmed. Affirmed. ________
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27
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